Local authorities inundated with applications for Deprivation of Liberties authorisations after Supreme Court decision

I covered the Supreme Court decision on Deprivation of Liberties in the West Cheshire and other cases earlier in the year. Just an update: there is evidence of adult social services teams of an inundation of cases which can only mean that people in residential care and receiving home care are getting their rights better looked after, although it’s clear there are problems. One commentator on the Community Care website argues that this decision enshrines social work values in the law, although possibly many other professions also value respect for autonomy among vulnerable people.

Link to the Supreme Court decision

Link to ‘Community Care’ article.

A good summary of the legal effect of the decision is provided by the Mental Health Law Online website, as follows:

(1) The ‘acid test’ for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. (2) The following are not relevant: (a) the person’s compliance or lack of objection; (b) the relative normality of the placement (whatever the comparison made); and (c) the reason or purpose behind a particular placement. (3) Because of the extreme vulnerability of people like P, MIG and MEG, decision-makers should err on the side of caution in deciding what constitutes a deprivation of liberty.

The MHLO website also has loads of relevant links to other cases and to commentary:

Link to Mental health Law Online website.

This includes a link to the video of Lady Hale announcing the decision in the Supreme Court, which itself is an admirably clear account of the decision and why it’s important.

Link to Lady Hale video.

Continuing healthcare judicial reviews: assess very carefully

I’ve not been looking at continuing healthcare recently – this is the process of assessing people for NHS funding rather than social care funding of care packages, and involves what is now a Clinical Commissioning Group deciding that someone has a difficult to provide-for healthcare need, rather than a social care need. It is particularly relevant to end-of-life care, since many patients will met the criteria.

There are two recent judicial reviews. The Dennison case was a retrospective case, where a relative appealed for belated payments after the death of the patient. The result was partially positive, the reason being that the assessor had not fully completed to assessment; they needed to complete the comments boxes and make a clear assessment of need. Nurses usually do this job, and this tells you that you need to train them well and they have to be very literate and thoughtful about how they complete the forms; the implications, both for the CCG and the relatives, of awarding Continuing Healthcare are such that this is never a routine or tickbox exercise.

Link to the Dennison case.

The Whapples case was about whether the CCG could insist that other alternatives should be looked at.  The answer was ‘yes’. This case was partly about suitable housing, but I find this interesting because my experience is that adult social care departments often insist on a continuing healthcare assessment if they think there’s any prospect of an award, before they will look at a community care assessment.

Link to the Whapples case

Link to a legal commentary (Hill Dickinson)

Link to a Mental Health Care Online report.

Advice – what to do to respond to historic abuse allegations

Claims of historic abuse get a lot of press coverage. How do you handle getting involved in a scandal? Many social workers and local government officials get mixed up in their local authority’s reaction, but increasingly social workers work for a private sector organisation, or a small organisation like a hospice that may not have the legal backing or the experience to react well to getting into such a situation.

Legal advice from an experienced law firm (link to the advice) suggests six things you should do, and I’ve added a bit of my own advice from experience, too:

• as soon as you hear about the possibility of something coming up, get together as much information about what happened as you can find, so that you’re not on the tv news giving the impression you don’t know what’s what.
• check your insurance; also my advice would be to  and check in with any potential supporters, such as committee members, trade unions, professional associations and personal friends who may be knowledgeable and experienced in such situations
• make sure you have a consistent message, think about the damage to your reputation and be ready to say more than ‘no comment’; also my advice would be to have a message that is more than saying how good you try to be – say what you’ve actually done and achieved
• information  requests about something in the past are often advance warning that something is about to hit you; be alive to that – make sure you know what you’re required to say (and not to say – confidentiality, but don’t invoke data protection unless you’re really sure it’s relevant, often it isn’t) and what you want to say; my advice again: use the opportunity of an early request for information to research things and plan any responses in advance, so you’re ready
• information requests about deceased persons are still affected by confidentiality requirements – my advice: check the law and the information commissioner’s guidance on access to health and social care records before saying anything; another reason for being well-prepared
• notify the relevant authorities of anything you should and keep a record of the notification – I always used to do it in writing and keep a note of what I said when people rang me up; I also used to grade my reports in levels of horrendousness, so that they couldn’t say that I hadn’t made it clear it was serious if it was, and so that I could not be accused of exaggerating something.